On 2 June 2026 the Supreme Court formally overruled its 2014 “Cheshire West” decision and upended the law on deprivation of liberty. 

As a result, significant changes are expected as the scope of deprivation of liberty has narrowed, with decision-makers now needing to consider multiple factors. This will affect the whole health and care sector and will have marked consequences for local authorities and the Court of Protection.

Background

In Cheshire West [2014] UKSC 19, the Supreme Court considered the position of individuals who lacked capacity to decide about their living arrangements and were being deprived if their liberty within the meaning of Article 5 of the European Convention on Human Rights (‘the Convention’). These individuals were living in settings (hospital, care homes, residential, community-based) under various regimes imputable to the State. Could these individuals ‘validly consent’ to their living arrangements? The Supreme Court (in a majority judgment) answered in the negative: individuals who lacked capacity could not ‘validly consent’. 

This seminal case gave us the ‘acid test’: i.e. the legal test to determine if someone was being deprived of their liberty. The acid test requires to find out is someone is under “continuous supervision and control” and “not free to leave”. Under the acid test, many individuals were found to be deprived of their liberty. As they could not ‘validly consent’, their deprivation of liberty had to be authorised (either under a procedure prescribed by law – the authorisation regime – or by decision of a court). This led to the Deprivation of Liberty Safeguards (‘DOLS’) under which local authorities had to process numerous applications, and to many cases going to the Court of Protection.

In England and Wales, the concept of deprivation of liberty under article 5 of the Convention is expressed in the Mental Capacity Act 2005 (‘the MCA 2005’). In Northern Ireland it is expressed in the Mental Capacity Act (Northern Ireland) 2016 (‘the MCA 2016’). Earlier this year the Attorney General for Northern Ireland (‘AGNI’) sought to issue a revised code of practice under the MCA 2016. The guidance would say that in some cases the individuals concerned could validly consent to their deprivation of liberty even if they lacked mental capacity. 

Supreme Court judgment

The proposed guidance was referred to the Supreme Court to determine its compatibility with article 5 of the Convention. In its 81-page judgment published on 2 June 2026 (A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16) the Supreme Court determined that Cheshire West had been wrongly decided, and that the proposed guidance was compatible with article 5. 

The two main points of the judgment are:

1. The Supreme Court accepts a narrower concept of deprivation of liberty (in accordance with European Court of Human Rights (ECHR) caselaw). This means that fewer individuals are deprived of their liberty than previously thought under the acid test. For instance those who “are unconscious, in a minimally-conscious state, or so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this” […] are not deprived of their liberty: no authorisation is needed.
2. The Supreme Court rejects the Cheshire West approach that “lack of legal capacity equals lack of valid consent”. Individuals who have “a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them […] may be treated as able to give or withhold consent to confinement by an expression of their wishes and feelings.”  Valid consent will require case-by-case examination.  

Commentary

This decision is remarkable for a number of reasons:

• It is rare for the Supreme Court to depart from previous authorities (which it is entitled to do since the 1966 Practice Statement).
• The decision is unanimous and by seven Supreme Court Justices.
• The decision has wide-ranging implications for all UK nations: Northern Ireland, Scotland as well as England and Wales.
• The decision is of immediate effect.
• The decision cannot be challenged to the ECHR: it is final.
• The decision went further than expected: it was meant to look at consent but ended up setting aside the acid test. A long list of potential factors must now be considered.
• The decision will cut through efforts to change the authorisation regime (i.e. the Liberty Protection Safeguards which are introduced to replace the DOLS regime).
• The decision is criticised but also praised by those working in the field of mental capacity and disability rights. The tension between protection and autonomy is always there.
• The number of applications for DOLS will fall down but there will be a period of uncertainty whilst care providers and local authorities consider how individual cases should be decided: expect some confusion and uncertainty before this settles.
• The number of cases going to the Court of Protection should fall down but this will take time and there may be more test cases in the short run.